Trump’s desire to dismiss Mueller last June, confirmed by three people familiar with the matter, highlights new political problems for the president but probably won’t increase his risk of being charged with obstruction of justice, according to legal specialists.
Mueller’s team is already investigating whether events leading up to Trump’s May 2017 dismissal of FBI director James Comey, including his alleged efforts to extract a promise of loyalty and an entreaty to drop a then-budding case against ex-National Security Adviser Michael Flynn, could constitute an effort to impede the probe.
Trump’s discussions on dismissing Mueller, a gambit the New York Times said was stopped by White House counsel Don McGahn’s threat to resign, may not help prosecutors prove intent, a key building block of any obstruction case, said Washington white collar criminal defence lawyer Solomon Wisenberg.
“I don’t see how a person can be guilty of obstruction when he does something he’s got the power to do," said Wisenberg, who served as a deputy to Whitewater Independent Counsel Kenneth Starr, who investigated then-President Bill Clinton.
Potentially tipping the scales in the opposite direction: what was in the president’s mind and the context of his actions. Either way, the political ramifications of firing the special counsel would be huge, with one Republican senator saying it would “end" Trump’s presidency. Mueller could choose to refer his findings to Congress for possible impeachment proceedings.
On legal grounds, the president’s desire to fire Mueller is at least circumstantial evidence for building an obstruction of justice case, but the success of such a case would depend on other evidence and upon proving intent, said Jack Sharman, who served as special counsel to a congressional probe of Clinton in 1995.
“It’s never a good thing where the prosecutor investigating you finds out that you tried to get him fired," said Sharman, whose now a partner at the law firm Lightfoot, Franklin & White LLC. Nevertheless, he added, “The president is within his power to cause a special counsel to be fired. The question is does he act corruptly."
Former Obama administration Justice Department lawyer Eric Columbus agreed.
The more it looks like he has something to hide, the easier it is to draw the inference that he was operating with bad intent, Columbus said. But if Trump was simply motivated by the belief he and his campaign were innocent and the investigation was without merit, then it would be within his authority to shut it down.
“It would not be corrupt, it would not be obstructing" in that context, the lawyer said.
That sort of explanation won’t satisfy other people, who tend to think the president is corrupt, said Saikrishna Prakash, who lectures on presidential power at the University of Virginia law school.
“It’s a Rorschach test," Prakash said. “If you think the president is corrupt, you will think he was just trying to deep-six this investigation again," while his supporters will continue to believe he’s being persecuted, he added.
Top Trump aides
Ultimately, it’s up to the special counsel to assess the evidence.
Mueller appears to be wrapping up the obstruction part his probe, according to current and former US officials. In recent weeks, he’s spoken to some of the president’s top-most officials: Director of National Intelligence Dan Coats, National Security Agency Director Michael Rogers, Attorney General Jeff Sessions and former FBI Director James Comey. All of them have some degree of knowledge about the Flynn and Comey firings.
It also comes amid a flurry of news related to the various probes into the 2016 election and the president. On Monday, FBI deputy director Andrew McCabe stepped down from his post weeks earlier than expected. McCabe was blasted by Trump and other top Republicans for his role in the Hillary Clinton email investigation and for campaign contributions his wife received from Democrats in a failed 2015 run for the Virginia state senate.
Whatever the legal merits, firing Mueller may be untenable politically. Republican Senator Lindsey Graham of South Carolina — a lawyer and politician — said such a move would be Trump’s downfall, while some lawmakers from both sides have stepped up calls for legislation barring the president from firing a special counsel.
“I’m sure that there will be an investigation around whether or not President Trump did try to fire Mr. Mueller. We know that he didn’t fire Mr. Mueller," Graham said Sunday on ABC’s “This Week." “We know that if he tried to, it would be the end of his presidency."
For many in Washington, McGahn’s near resignation evoked President Richard Nixon’s fateful 1973 dismissal of his prosecutorial nemesis, Archibald Cox, which also precipitated the protest resignations of Attorney General Elliot Richardson and his deputy, William Ruckelshaus.
While Nixon was never charged with a crime, his firing of Cox at the height of the Watergate scandal became known as the “Saturday Night Massacre" and resulted in the appointment of another special counsel, Leon Jaworski, and hastened an erosion of political support that prompted Nixon to resign 10 months later as Congress took steps toward his impeachment.
“No one suggested Nixon’s firing of Cox was obstruction," Wisenberg said. The would-be dismissals may have amounted to abuse of presidential power, but that’s an issue for impeachment and not a crime, he added. “You’re basically going to have a thought crime if you say ‘it’s all the motive,’" the attorney said.
Even if the president did obstruct Mueller’s probe, impeachment may be the only means of holding him accountable.
Firing Cox was an error, but it wasn’t a crime, said Chapman University law professor Ron Rotunda, who served on the US Senate Watergate committee as assistant majority counsel. The official White House Office of Legal Counsel policy position is the president cannot be indicted, he said.
Columbus too agreed with that assessment, adding the president could still be named as an unindicted co-conspirator.
Former federal prosecutor Jeffrey Cramer said he believes a president could be indicted and Mueller has shaped his team in a way to be prepared for doing so, including having to confront a challenge before the Supreme Court.
Mueller brought on Michael Dreeben, a current deputy solicitor general who is an expert in criminal law and one of the most experienced US officials to argue before the Supreme Court, said Cramer, now managing director for Berkeley Research Group LLC.
“If the evidence is there, Mueller’s team is structured to see if a sitting president can be indicted," Cramer said in a phone interview. Bloomberg